The U.S. Equal Employment Opportunity Commission’s (EEOC or Commission) Management Directive 715 (MD-715), issued October 1, 2003, establishes standards for ensuring that agencies develop and maintain model equal employment opportunity (EEO) programs. One of the six elements of a model EEO program is “Proactive Prevention of Unlawful Discrimination.” When used properly, alternative dispute resolution (ADR) can assist agencies in fulfilling the goals of this
element. [1]

This report presents government-wide data, as submitted by federal agencies, to determine how effectively ADR programs resolve EEO disputes and how efficiently the ADR programs operate. In addition, this report addresses other important ADR issues, including types of ADR techniques, sources of third party neutrals, and types of settlement benefits.[2]

During the pre-complaint stage in fiscal year (FY) 2006, ADR was used in 44.6% of the completed/ended counselings which is a slight decrease from the 45.4% usage in FY 2005.[3] This decrease occurred as the completed/ended counselings declined from 41,070 in FY 2005 to 38,824 in FY 2006. The vast majority of ADR attempts utilized mediation as the ADR technique of choice and neutrals from private organizations as the major source of mediators.
In FY 2006, ADR efforts resulted in 5,808 counselings receiving settlements including $980,798 in monetary benefits. This is 255 fewer settlements than in FY 2005 but a $10,990 increase in monetary benefits. For ADR settlements with monetary benefits, the average benefit for FY 2006 is $2,352.

During the formal complaint stage, the ADR participation rate increased from 2.6% in FY 2005 to 5.5% in FY 2006 and agencies selected mediation as the primary ADR technique and In-House neutrals as the major source of neutrals. With regard to the ADR attempts completed in the formal complaint stage, the ADR resolution rate increased from 68.2% in FY 2005 to 69.5% in FY 2006. As a result of the ADR process in FY 2006, complainants in 313 complaints received a total of $3,554,975 in monetary benefits for an average of $11,358.

In 1990, the Administrative Dispute Resolution Act (“ADRA”) required each federal agency to adopt a policy on ADR use. In 1996, ADRA was reenacted as the “Administrative Dispute Resolution Act of 1996” (ADR Act). In 1998, EEOC’s Federal Sector ADR Study reported that more than half of the federal agencies surveyed had active ADR programs. Thereafter, in 2000, EEOC required all federal agencies to establish or make available an ADR program during the
pre-complaint and formal complaint stages of the EEO process. See, 29 C.F.R. § 1614.603. This regulation requires agencies to make reasonable efforts to voluntarily settle EEO discrimination complaints as early as possible throughout the administrative process.

The requirements for ADR programs in the federal sector EEO complaint process are outlined in 29 C.F.R. § 1614.102(b)(2)(1999), EEO Management Directive 110 (MD-110), and EEO Management Directive 715 (MD-715). MD-715, issued October 1, 2003, provides policy guidance for establishing a model EEO program. To become a model EEO program under MD-715, agencies must operate their EEO programs efficiently and take proactive steps to prevent unlawful discrimination from occurring. Agencies
are required, among other things, to maintain an efficient, fair, and impartial complaint resolution process. An integral part of establishing a model EEO program is the effective use of ADR to resolve disputes.

The Commission evaluates the government-wide data, as reported by federal agencies in their annual Form 462 Report to the EEOC, to determine how successfully ADR programs resolved EEO disputes (effectiveness) and whether the ADR programs operated in a timely manner (efficiency). This report addresses the effectiveness and efficiency of ADR programs as well as other important ADR issues, including types of ADR techniques, sources of neutrals, and types of settlement benefits.

Eighty-one agencies filing Form 462 reports indicate that 100% of their employees can participate in ADR. Government-wide, 99% of employees can participate in ADR.[4]

Agencies have the discretion to determine when an EEO matter is appropriate for ADR. The Informal or pre-complaint process starts with the aggrieved person meeting with an agency EEO Counselor or by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting intent to begin the EEO process. This contact should occur within 45 days of the personnel action or conduct which caused the aggrieved person
to believe that s/he was discriminated against. MD-110 provides Commission guidance and procedures that EEO Counselors should follow when presented with claims of discrimination. Additionally, MD-110 provides that aggrieved individuals who seek pre-complaint counseling must be fully informed of their agency’s ADR program and how the ADR program works.

Agencies may establish written procedures to identify when ADR will be offered, or they may decide to offer ADR on a case-by-case basis. Agencies may not decline to offer ADR in particular cases solely because of the basis involved i.e., race, color, religion, national origin, sex, age, disability, or retaliation.

Historically, ADR offer and participation rates measured ADR activity in both completed and pending counselings at the end of the fiscal year. Including ADR activity in pending counselings occasionally created percentage rates greater than 100%. In FY 2006, the goal was to ensure greater uniformity, consistency, and quality in the reporting and utilization of ADR data by the collection of ADR data for completed/ended counselings and therefore pending counseling ADR activity is not
included in ADR percentage rates. Therefore, paralleling of FY 2006 data with prior years’ data is not possible and comparison of prior years’ data is offered for informational purposes only.

The EEOC established a goal for FY 2009 that parties should participate in ADR in 50% of all completed/ended counselings. During the pre-complaint process in FY 2006, there were 38,824 completed/ended counselings. Completed/ended counselings decreased by 5.5% from FY 2005 and decreased 31% from FY 2002. Agencies offered ADR in 29,352 completed/ended counselings which represents an offer rate of 75.6%. Of those offered ADR, 17,309 agreed to participate, representing a participation rate
of 44.6%. The ADR usage in the pre-complaint process from FY 2002 through FY 2006, under applicable formulae, is shown in Figure 1.

Because the completed/ended counselings by the U.S. Postal Service represented 16,954 (43.7%) of the total 38,824 completed/ended counselings in FY 2006, their results have a significant impact on the government-wide data. When the FY 2006 government-wide data is examined, excluding the U.S. Postal Service, the pre-complaint ADR offer rate decreased from 75.6% to 64.9%, and the ADR participation rate decreased significantly from the government-wide average of 44.6% to 22.2%. In FY 2006,
for agencies with greater than twenty-five completed/ended counselings, the U.S. Postal Service reported the highest ADR participation rate in the pre-complaint process at 73.5%. No other agency with 25 or more completed/ended counselings had a participation rate greater than fifty percent. As shown in Table 1, the U.S. Postal Service has the highest ADR participation rate in the pre-complaint process.

At the pre-complaint stage, federal agencies have flexibility in selecting the types of ADR techniques to use in their respective ADR programs. Agencies may consider their mission and their workplace culture to determine which ADR techniques will best meet the needs of their workforce.

In FY 2006, agencies reported 13,451 ADR attempts during the pre-complaint process. Mediation was selected in nearly 98% of all counselings in which ADR was attempted. Since FY 2000, mediation has been the overwhelming choice of ADR techniques, averaging 96% of all ADR attempts. FY 2006 percentages are shown in Table 3.

Because the U.S. Postal Service accounted for 9,449 out of the 13,451 ADR attempts in FY 2006, the government-wide data is largely impacted by that agency. Even excluding the U.S. Postal Service data, however, mediation was the preeminent ADR technique during the pre-complaint process in FY 2006 as it was utilized in 92.4% of all ADR attempts. See Table 4 below.

The maximum time allowed for ADR during the pre-complaint process is 90 days. 29 C.F.R. §1614.105(f). A three-year analysis of the data, as provided in Table 5, shows that the average time for ADR attempts during the pre-complaint process decreased from 46 in FY 2004 to 36 days in FY 2005; however, in FY 2006, there was a 2 day increase to 38 days. As such, efficiency was impacted by a decline of 5.5%. These processing times remain well within the 90-day maximum allowed for ADR. The
most efficient ADR techniques in FY 2006 were Ombuds and “Other Techniques” which averaged 28 days.[7] In contrast, “Early Neutral Evaluation” represented the ADR technique with the longest process time, averaging 70 days in FY 2006.

The ADR Act defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.[9] In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings. Federal sector ADR programs selected neutrals from the following sources: (1) in-house (employees within the agency trained in ADR); (2) another federal agency;
(3) private organizations; (4) multiple sources; and (5) other sources.[10]

As shown in Table 6, neutrals from private organizations (including bar associations, individual volunteers, and contractors) were selected more often than any other source of neutrals. A two-year analysis of the data shows that the percentage of neutrals from “Private Organizations” and “In-House” remained the same. “Another Federal Agency” decreased by 1%. In FY 2006, “Other Sources” and “Multiple Sources” are at one percent.
Historically, neutrals from Private Organizations have been utilized the most.

In FY 2006, the U.S. Postal Service used private organizations exclusively in its 9,448 ADR attempts. In FY 2006, when the U.S. Postal Service data is excluded from the 13,451 government-wide counselings that attempted ADR, federal agencies selected “In-House” neutrals more frequently than any other source of neutrals.

Excluding U.S. Postal Service data, a two-year analysis of the data shows that the use of “In-House” neutrals has remained at 49%. Since FY 2000, the use of “In-House” neutrals remains the primary source of neutrals, excluding U.S. Postal Service data.

One factor in determining the effectiveness of ADR in the federal sector EEO process is the percentage of EEO disputes that are resolved each fiscal year.[11] Of the 17,310 ADR closures during the pre-complaint process in FY 2006, the ADR process resulted in 8,671 (50%) resolutions.[12]See Figure 2. A three-year analysis of the data shows that the ADR resolution rate increased from 49%
in FY 2004 to 51% in FY 2005 with a slight decrease to 50% in FY 2006.[13]

3.Average Processing Time (APT) of Pre-Complaint ADR Closures is Improving

A three-year analysis of the data shows that the average processing time (APT) for ADR closures during the pre-complaint process decreased from 61 days in FY 2004 to 41 days in FY 2005 and again decreased to 40 days in FY 2006. Table 9 shows the average processing time in FY 2006.[14]

Table 9 - Average Processing Time in the Pre-Complaint Process
FY 2006

For the third year in a row, the Defense National Guard Bureau repeats having the fastest average processing time (APT) for ADR closures in the pre-complaint process of agencies that had greater than ten ADR closures. See Table 10. The government-wide average in FY 2006 is 40 days.

Table 10 - Fastest Average Processing Time in the Pre-Complaint Process
FY 2006

Chapter 2, Section VII (A) of the MD-110 provides that if ADR is offered at the informal stage of the EEO process, the aggrieved individual must elect between ADR and the traditional counseling process either at the initial counseling session or within a reasonable time thereafter. Once the aggrieved individual has elected to proceed through counseling or ADR, the decision is final. Data for resolutions, either through the traditional counseling process or the ADR process is provided by
agencies in their annual Form 462 report. Resolution rates are determined based on settlements and “no formal complaint filed” data.

As shown in Table 11, of the 38,824 counselings that were completed in FY 2006, 21,430 were resolved through EEO Counseling or ADR, including a total of 7,424 settlements while in FY 2005 there was a total of 7,652 settlements out of 22,038 resolutions. A six-year analysis of the data shows that the total resolution rate increased by four percentage points from 51% in FY 2001 to 55% in FY 2006.

From FY 2000 to FY 2006, ADR overall averaged a resolution rate of 56%, while EEO counseling has averaged a resolution rate of 54%. However, since FY 2003 the EEO counseling resolution rate has exceeded the ADR resolution rate. Specifically, in FY 2003, the EEO counseling resolution rate was 64%, while the ADR resolution rate was 60%. In FY 2004, the EEO counseling resolution rate decreased to 54% and the ADR resolution rate decreased to 49%. In FY 2005, the EEO counseling resolution rate
remained at 54% but the ADR resolution rate climbed to 51%. In FY 2006, the EEO counseling resolution rate increased to 59% and the ADR resolution rate decreased by one percent to 50%.

Section EBenefits Obtained Through ADR Settlements in the Pre-Complaint Stage

1.ADR Settlements Are Less Expensive on Average than EEO Counseling Settlements

During the pre-complaint process in FY 2006, 7,424 counselings resulted in settlements, either with the use of ADR, or traditional EEO counseling. Of this number, 7,033 settlements included non-monetary benefits and 622 settlements included monetary benefits, totaling $1,666,651. ADR efforts resulted in 5,808 settlements and included 417 with monetary benefits totaling $980,798, while EEO counseling resulted in 1,616 settlements and included 205 with monetary benefits totaling
$685,853.

It is interesting to note that although the total number of ADR settlements decreased by 462 settlements in FY 2006, the number that included monetary benefits increased by five with a total dollar increase of $10,991. As a result, in FY 2006, the average monetary ADR settlement amount was $2,352, down two dollars from FY 2005, and for traditional EEO counseling the average settlement amount was $3,346, down $896 from FY 2005. These figures represent a slight decrease for ADR settlements
and 21% decrease in the traditional EEO counseling average monetary settlement. Notably, in FY 2005, the average EEO settlement exceeded the average ADR settlement by $1,888. In FY 2006, the difference between the EEO counseling average monetary settlement and the average ADR monetary settlement has been more than halved to a difference of $994. The total average monetary benefit for ADR and EEO counseling settlements decreased by $232 from FY 2005 to FY 2006. Table 12 provides a five year
analysis of monetary benefits.

Table 13 shows that in FY 2006, the “Lump Sum” payment was the most frequently used type of monetary settlement benefit. At $11,268, Compensatory Damages had the highest average of monetary benefits in ADR settlements, while at $4,096, Lump Sum was the highest in EEO counseling settlements. We note that the total number of counselings that settled with monetary benefits does not equal the aggregate of each type of monetary benefit since one settlement agreement could include
more than one type of monetary benefit.[16]

Examples of non-monetary benefits include improved communication, a detail, a desk audit, leave restored, or a reassignment of duties. During the pre-complaint process in FY 2006, ADR efforts resulted in 5,808 settlements, including 5,557 with non-monetary benefits and EEO counseling resulted in 1,616 settlements including 1,476 with non-monetary benefits.

Table 14 shows that in FY 2006, “Other Non-Monetary Benefits” was the category most frequently reported, in that it was provided by agencies in 76% of all ADR settlements and 50% of all EEO counseling settlements.

If a dispute is not resolved through the pre-complaint stage ADR process or the traditional counseling process, the agency issues a notice of right to file a discrimination complaint to the aggrieved person. The notice informs the individual of the process to file a formal discrimination complaint. The Formal Complaint stage of the EEO process is initiated when the aggrieved person files a discrimination complaint.

Agencies are required by EEOC regulations to have an ADR program available for both the pre-complaint and formal complaint processes. However, they have the discretion to determine when an EEO matter is appropriate for ADR, and at what point in the EEO process to offer ADR.[19] Agencies may establish written procedures to identify when ADR will be offered, or they may decide to offer ADR
on a case-by-case basis.

In FY 2006, 19,119 formal complaints were closed.[20] Of those complaints, agencies offered ADR to 2,737 which represents an Offer Rate of 14.3% and 1,057 were accepted into agency programs for a 5.53% participation rate. Like in the pre-complaint stage, for some indices, comparison of FY 2006 data with prior year’s data is unavailing but will be provided for informational purposes. And while the data shows an approximate doubling of
the offer rate and participation rate from FY 2005 to FY 2006, the increase in both rates is related to the change in the type of data collected.[21] The data continues to show that ADR is significantly under-utilized at the formal complaint stage due, in large part, to agencies’ failure to offer ADR once a formal complaint has been filed.

A five-year chart of the data, Figure 3 below, compares for informational purposes the decrease in “complaint workload” data gathered in FY 2005, to “closed complaints” data gathered in FY 2006. We note that the number of ADR offers and ADR participants remained comparable during the last three fiscal years.

Because the U.S. Postal Service accounted for 7,785 cases (40.7%) out of the 19,119 complaint closures in FY 2006, the government-wide data is largely impacted by that agency. When the FY 2006 data is examined excluding the U.S. Postal Service’s low Offer Rate (0.54%) and low Participation Rate (.44%), the government-wide ADR Offer Rate at the formal complaint stage increases from 14.3% to 23.8%, and the ADR Participation Rate increases from 5.53% to 9.03%. Figure 4 shows the U.S.
Postal Service ADR usage as compared to all other agencies.

Figure 4 - Comparison of ADR Usage between U.S. Postal Service and All Other Agencies in the Formal Complaint Process
FY 2002 – FY 2006

In FY 2006, for agencies with ten or more closed complaints, four agencies, as shown in Table 15, had 100% ADR offer rates in the formal complaint process. A table with the ranking of agencies by ADR rates is located at www.eeoc.gov/federal/adr/datatables/index.html.

In FY 2006, for agencies with ten or more closed complaints, the National Aeronautics and Space Administration, as shown in Table 16, had the highest ADR participation rate in the formal complaint process.

Federal agencies have flexibility in selecting the types of ADR techniques to use in their respective ADR programs. Agencies may consider their mission and their workplace culture to determine which ADR techniques will best meet the needs of their workforce.

In FY 2006, agencies reported 998 ADR attempts during the formal complaint process. Mediation, as shown in Table 17, was selected in 85% of all formal complaints that attempted ADR in FY 2006. Since FY 2003, mediation has been used more than any other ADR technique at the formal complaint stage of the EEO process, averaging 86% of all ADR attempts. All reporting agencies used mediation as its primary ADR technique except Defense National Geospatial-Intelligence Agency which used Settlement
Conference in two out of three ADR attempts. Mediation continued to be the preeminent ADR technique during the formal complaint process in FY 2006.

The maximum time allowed for ADR during the formal complaint process is 90 days. A three-year analysis of the data, as contained in Table 18, shows that the average processing time (APT) for ADR attempts during the formal complaint process decreased from 92 days in FY 2004 to 60 days in FY 2005 and again decreased to 44 days in FY 2006. The average processing time over the three year period is 65 days.

The ADR Act defines a neutral as an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy. In the federal sector, ADR programs have the discretion to select the source(s) of neutrals to conduct ADR proceedings.

1.In-House Neutrals Most Popular Source of Neutrals and Percent Remains Unchanged

Government-wide data shows that in FY 2006, neutrals from within the agency (In-House) were selected more often than any other source of neutrals at 49%, the same percent as in FY 2005. The second most utilized source of neutrals was Another Federal Agency at 37%, followed by Private Organizations at 11%. Multiple Sources were used in 29 attempts (3%). A three-year analysis of the data shows that neutrals from Private Organizations were used in 55% of the attempts in FY 2004, declining to
14% in FY 2005, and further declining to 11% in FY 2006. This decline can be directly related to the U.S. Postal Service’s decline in ADR attempts from 973 in FY 2004 to 37 attempts in FY 2005 to 30 attempts in FY 2006. The U. S. Postal Service uses private organization neutrals almost exclusively. Table 19 shows the percentage for sources of neutrals.

One factor in determining the effectiveness of ADR in the federal sector EEO process is the percentage of EEO disputes that are resolved. Of the 1,057 ADR closures during the formal complaint process in FY 2006, 735 (70%) resulted in a settlement or withdrawal. A four-year analysis of the data as set forth in Figure 5 shows that since FY 2003, the ADR resolution rate at the formal complaint stage has increased by 28 percentage points from 42% in FY 2003 to 70% in FY 2006. The ADR
resolution rate has averaged nearly 64% over the four-year period.

1.Defense Army and Air Force Exchange Service has Highest ADR Resolution Rate

In FY 2006, three agencies with five or more ADR closures had a 100% ADR resolution rate.[23] A table with the complete ranking of agencies by ADR resolution rate is located at www.eeoc.gov/federal/adr/datatables/index.html.[24] Table 20 shows the agencies with the highest ADR resolution rate in the formal complaint process.

In FY 2006, for agencies with five or more ADR closures, the Tennessee Valley Authority and Equal Employment Opportunity Commission, as shown in Table 21, had the most improved ADR resolution rate in the formal complaint process.[25]

A two-year analysis of the data, as set forth in Table 22, shows that the average processing time (APT) for ADR closures during the formal complaint process decreased substantially from 66 days in FY 2005 to 50 days in FY 2006.

There were a total of 19,119 complaint closures in FY 2006, of which there were 3,490 settlements and 1,594 withdrawals. These resolutions were obtained through ADR and other negotiation processes (non-ADR) during the formal complaint stage. Of these, 1,057 were ADR closures which included 678 settlements and 57 withdrawals. A two-year analysis of the data shows that the ADR Resolution Rate increased from 68.2% in FY 2005 to 69.5% in FY 2006. Table 23 shows the two-year trend of ADR
resolutions.

In FY 2006, the ADR resolution rate of 69.5% exceeded the non-ADR resolution rate of 23.9%. The U.S. Postal Service reported only 34 ADR closures, therefore the government-wide data is not impacted by that agency.

During the formal complaint process in FY 2006, 3,634 complaint closures received monetary benefits, totaling $32,625,668. In FY 2006, the average amount of monetary benefits per complaint closure with benefits was $8,978. From FY 2001 to FY 2006, the six-year average amount of monetary benefits in complaint closures was $7,547. Table 24 shows a six-year comparison of monetary benefits.

During the formal complaint process in FY 2006, there were 678 ADR settlements of which 313 had monetary benefits totaling $3,554,975. The average amount of monetary benefits for ADR settlements was $11,358. From FY 2001 to FY 2006, the six-year average amount of monetary benefits in ADR complaint closures is $10,044. The six-year average amount of monetary benefits in non-ADR settlements is $7,266. Table 24, above, shows a six-year comparison of ADR monetary benefits.

In FY 2006, in the pre-complaint stage, ADR usage remained stable at 45%, and mediation remained the ADR technique used most often. The ADR resolution rate remained constant at 50%, with the average monetary settlement decreasing slightly from $2,354 to $2,352.

In the formal stage there was positive growth in the participation rate, which increased from 2.6% in the prior fiscal year to 5.5% in FY 2006. In addition, the ADR resolution rate increased from 68.2% in the prior fiscal year to 69.5% in FY 2006. ADR settlements were $2,604 higher than non-ADR settlements in FY 2006, as compared to an average of $4,712 higher than non-ADR settlements during the prior fiscal year.

ADR Offers - The decision by an agency to offer ADR to an individual during the EEO process.

ADR Participation Rate - The percentage of completed/ended counselings or complaint closures where both parties agreed to participate in ADR. A table with the ranking of agencies by participation rate is located at www.eeoc.gov/federal/adr/datatables/index.html

ADR Resolution Rate - The percentage of ADR closures that were resolved by either settlement or withdrawal from the EEO process. A table with the ranking of agencies by resolution rate is located at www.eeoc.gov/federal/adr/datatables/index.html.

ADR Usage - The agreement by both parties to participate in the ADR process.

Alternative Dispute Resolution (ADR) - A term used to describe a variety of approaches to resolve conflict rather than traditional adjudicatory methods. ADR is a process in which a third party neutral assists in resolving disputes by using various techniques including mediation, settlement conference, facilitation, early neutral evaluation, peer review, ombuds, fact finding, and mini-trial to reach a resolution acceptable to the parties.

Average Processing Time - The total number of days divided by the number of ADR attempts in completed/ended counselings or ADR complaint closures.

Complaint Closures - The agency’s decision to close a complaint during the formal complaint stage as a result of settlement, withdrawal, dismissal, or merit decision.

Complaint Workload - The combined total of complaints filed, complaints pending from the previous fiscal year, and complaints remanded.

Completed/Ended Counselings – The number of counseling which were concluded/closed, either by a written settlement agreement, a written withdrawal from the counseling process, the issuance of a notice of right to file a formal complaint, the forwarding of a counseling to an Administrative Judge when requested/ordered by the Administrative judge, or the filing of a complaint after the regulatory counseling period had expired even though not all counseling duties had
been performed.

Counseling – a process during the pre-complaint stage where an agency EEO Counselor conducts an initial interview with the aggrieved person for the purpose of explaining the EEO complaint process, determining the claim(s), basis(es) raised by the potential complainant, determining jurisdictional issues, and to seek a resolution of the dispute. The process concludes when the Counselor either reaches a resolution or, alternately, advises the aggrieved person of his/her
right to file a formal complaint of discrimination if attempts to resolve the dispute through EEO counseling or ADR were unsuccessful, and submits a report documenting that the EEO counselor undertook the required counseling actions.

EEO Complaint Process – A forum which allows federal applicants for employment or federal employees to file complaints of discrimination if they believe that the discrimination occurred because of their protected basis as defined under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973 and the Equal Pay Act of 1963. The process provides for counseling, formal complaint, investigation, hearing,
decision, and appeals.

Neutrals - An impartial third party who has no vested interest in the outcome of a dispute that is utilized to aid the parties in resolving the issue in controversy.

Non-ADR Settlement – generally, a settlement reached by an EEO counselor during the pre-complaint process.

Parties - The parties in an EEO dispute include the aggrieved individual (or complainant) and the agency that is named in the complaint.

Resolutions - Resolutions include settlements where individuals received monetary and/or non-monetary benefits and matters where the individual withdrew from counseling or a complaint from the EEO process.

Settlements – An agreement in the counseling or complaint stage where the individual resolves the EEO matter prior to a final agency decision or adjudication before an EEOC administrative judge and received monetary and/or non-monetary benefits from the agency in return for withdrawing the matter from the EEO process.

Withdrawals (No Formal Complaint Filed) – Termination of the EEO process during the counseling or complaint stage where the individual withdrew the matter from the EEO process without receiving any monetary and/or non-monetary benefits from the agency. In the pre-complaint stage, a withdrawal is also referred to as “No Formal Complaint Filed.”

[1] ADR is a process in which a third party neutral assists the disputants in reaching an amicable resolution through the use of various techniques. ADR describes approaches to resolve conflict which avoid the cost, delay, and unpredictability of the traditional adjudicatory processes.

[2] A neutral is an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy.

[3] For the purposes of determining ADR usage (Participation Rate), EEOC divides the total counselings accepted into ADR by the number of completed/ended counselings.

[4] Four agencies do not provide total work force or ADR participation numbers for national security reasons.

[5] In Table 1, agencies with fewer than 25 completed/ended counseling are excluded in the ranking.

[7] Ombuds are individuals who rely on a number of techniques to resolve disputes. The power of the ombud lies in his/her ability to persuade the parties to accept his/her recommendations.

[8] In this table, average processing time for FY 2004 and FY 2005 tracks the number of days between the date that the individual elected ADR (accepted the agency’s ADR offer during the reporting period) and the date that the ADR process or the reporting period ended. For FY 2006, the calculation is to the date that the ADR process ended. N/A, “not applicable,” results from the Technique not being used in the fiscal
year.

[9] For more information about the use of neutrals in the federal sector EEO process, refer to the Administrative Dispute Resolution Act, 5 U.S.C. Section 571(9), and Chapter 3 of MD-110.

[10] An example of “other sources” for neutrals is Federal Executive Boards.

[11] It should be noted, however, that anecdotal comments indicate that in addition to resolving EEO disputes, ADR may also improve the parties’ communication skills, reduce tension in the workplace, and help both parties avoid costly litigation expenses.

[12] The term “resolutions” includes settlements where individuals received monetary and/or non-monetary benefits and matters where no formal complaint was filed.

[13] The ADR resolution rate is obtained by dividing the number of ADR resolutions by the number of ADR closures.

[14] To determine the duration of each ADR case, agencies are instructed to add the number of days from the date the counselee elected ADR (accepted the agency’s ADR offer) to the date that the ADR process ended.

[15] “No ADR Attempt” includes cases where there is an ADR election but, ultimately, during the ADR process an ADR technique is not utilized.

[16] Averages are determined by dividing the monetary benefit category (ADR or EEO counseling) by the number of counselings (ADR or EEO counselings).

[17] The total number of counselings that settled with non-monetary benefits does not equal the aggregate of each type of non-monetary benefit, since one settlement agreement could include more than one type of non-monetary benefit.

[19] In addition to an agency’s ADR program, an EEOC Administrative Judge (AJ) may request the parties to participate in ADR to resolve complaints. This report does not include AJ settlement efforts.

[20] Form 462 Part XI for FY 2006 was amended to collect “Complaint Closures” data unlike in prior years when information was collected to reflect activity in pending complaints (complaint workload) during the reporting period. It was determined that “Complaint Closures” data would be more consistent for trend analyses.

[21] FY 2005 data reflects percentages of complaint workload while FY 2006 data determines percentages based on closed complaints. For FY 2006, the Formal Offer Rate is calculated by dividing the Offered ADR by Complaint Closures multiplied by 100 and the Formal Participation Rate is calculated by dividing the elected ADR by Complaint Closures multiplied by 100. Although not shown, an Election Rate can be
calculated by dividing the elected ADR by the offered ADR multiplied by 100.

[22] N/A, “not applicable,” results from the Technique not being used in the fiscal year.

[23] The ADR resolution rate is obtained by dividing the number of ADR resolutions by the number of ADR complaint closures. The method of determining ADR resolutions rate is not impacted by the change in data collection.

[24] The term “resolution” includes settlements where individuals received monetary and/or non-monetary benefits, and complaints withdrawn from the EEO process.

[26] The total number of complaints that settled with monetary benefits does not equal the aggregate of each type of monetary benefit, since one settlement agreement could include more than one type of monetary benefit.

[27] The total number of complaints that settled with non-monetary benefits does not equal the aggregate of each type of non-monetary benefit, since one settlement agreement could include more than one type of non-monetary benefit.